On Tuesday, the state of California charged David Daleiden and Sandra Merritt of the Center for Medical Progress on 15 felony counts over their undercover reporting regarding Planned Parenthood. In 2015, Daleiden and Merritt released video showing high-ranking Planned Parenthood members joking about selling baby body parts for market rates and picking through baby body parts in order to demonstrate which sorts of body parts were available for sale for medical research, as well as talking about the best methods of abortion for procuring those baby body parts. The California Department of Justice, under the auspices of now-Senator Kamala Harris, raided Daleiden’s home for footage in April 2016; last year, the state of Texas pursued charges against Daleiden and Merritt, but those charges were thrown out.
So, here’s the question: where’s the media, rushing to the defense of these undercover journalists?
They’re silent. Or they’re celebrating, since they think that Daleiden and Merritt were evil conservatives out to target the saints at Planned Parenthood. They buy the lie that the tapes were deceptively edited so as to implicate Planned Parenthood in nefarious activity – but the tapes show precisely what the tapes show.
Here’s what you need to know.
California is a two-party consent state when it comes to taping private conversations. But those conversations have to be private. Fourteen of the 15 charges filed came under California Penal Code Section 632(a), which states in relevant part, “Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication ... shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” Note the language: confidential. These were not confidential communications.
First off, conversations in a public restaurant are clearly not confidential. And the Ninth Circuit found in 2002 that tapes made in private areas between a company and undercover journalists who are “strangers” to that company are not illegal – they ruled that a very similar undercover investigation by ABC News against Medical Laboratory Management Consultants for Primetime Live was just fine: “Devaraj's willingness to invite these strangers into the administrative offices for a meeting and then on a tour of the premises indicates that Devaraj did not have an objectively reasonable expectation of solitude or seclusion in the parts of Medical Lab that he showed the ABC representatives.”
Furthermore, the court found no reasonable expectation of privacy regarding the conversations between the ABC undercover reporters and medical technicians: “Devaraj did not reveal any information about his personal life or affairs, but only generally discussed Medical Lab's business operations, the pap smear testing industry, and Gordon's supposed plans to open her own laboratory.” In fact, the Ninth Circuit explicitly distinguished Arizona law from California law and then said that even under California law, there would be no reasonable expectation of privacy: “The expectation of limited privacy in a communication – namely the expectation that a communication shared with, or possibly overheard by, a limited group of persons will nonetheless remain relatively private and secluded from the public at large – is reasonable only to the extent that the communication conveys information private and personal to the declarant.” This is precisely the same logic that would apply here.
So, where’s the media in defense of Daleiden and Merritt? They’re absent, even as they defend their own undercover journalists. Today, National Public Radio asked for the reinstatement of a reporter who secretly recorded high school students and legislators chatting about LGBT issues. Yet NPR has said nothing about Daleiden and Merritt.
This undermines the press’ repeated, vociferous claims that they will challenge anyone who stands against press freedoms. They pretend to be fighters against governmental overreach – they’ll fight Trumpian fascism every step of the way! – but the minute that somebody they don’t like, a conservative, faces serious government crackdowns, they shut up.
Daleiden and Merritt deserve their defense. Anything less is rank hypocrisy.